Warner Bros: Our False DMCA Takedowns Are Not a Crime

In a few weeks movie studio Warner Bros. will have to defend itself against DMCA fraud and abuse allegations from file-hosting service Hotfile. The two parties are currently preparing for this clash, and in recent filings Warner asks the court to exclude Hotfile's “perjury” accusation. The movie studio admits that mistakes were made but insists that they've committed no crime.

In response to a copyright infringement lawsuit launched by the MPAA, Hotfile counter sued Warner Bros. two years ago for abuse of its DMCA takedown process on numerous occasions.

The file-hoster alleged that after giving Warner access to its systems the studio wrongfully took down hundreds of files including demos and Open Source software without holding the copyrights to them. The takedowns continued even after the movie studio was repeatedly notified about the false claims.

While Warner later admitted the accusations, the movie studio argue that they are not to blame because the mistakes were made by a computer, not a person. As a result, the false takedown request were not “deliberate lies.”

However, not all false takedowns were unintentional. Warner admitted that one of their employees deleted Open Source software from Hotfile on purpose. Their rationale for this was that the software in question could have speeded up infringing downloads.

Warner nonetheless asked the court for summary judgment in its favor, but in September Florida District Court Judge Kathleen Williams decided to let the issue be heard before a jury later this year. She stated that there is enough evidence showing that “Warner intentionally targeted files it knew it had no right to remove.”

Through several new filings Warner is hoping to limit the potential damage, by asking the court to exclude two issues from being discussed during the upcoming trial. The first issue deals with Hotfile’s claim that Warner committed perjury, and the other relates to an audit of the movie studio’s anti-piracy system.

The perjury motion relates to Hotfile’s Special Rightsholder Account (SRA) which Warner used to remove links from the site. This tool required the movie studio to check a box confirming “under penalty of perjury that I am owner or an authorized legal representative of the owner of the copyrights in this material.”

Since Warner admitted that they submitted false takedown requests and Hotfile specified the above requirements in its terms of service, the file-hoster argued that the studio committed a crime. However, Warner disagrees with this line of reasoning.

“That is not how perjury works, not how the DMCA works, is irrelevant to the claims the jury must decide, and would unfairly prejudice the jury against Warner by suggesting that Warner’s errors amounted to criminal acts,” Warner writes.

Warner adds that the DMCA only requires the penalty of perjury statement to confirm that the sender represents the copyright holder, not that the allegedly infringing links point to their copyrighted material, they say.

“The DMCA ‘penalty of perjury’ language is thus narrower than the SRA language that Hotfile employed. The DMCA’s language applies only to impersonating a copyright owner or sending notices on their behalf without authorization; mere misidentification of the files being taken down or the works represented therein are at most incorrect ‘statements’.”

However, Warner also removed copies of JDownloader, which they were certainly not authorized to do. But this was also not a crime either according to the the studio, since it never claimed to be representing JDownloader’s developer Appwerk GmbH.

“To fall under the ‘penalty of perjury’ language in [the DMCA section], however, Warner would have needed not to misidentify instances of JDownloader as infringing Warner works (which is what happened), but instead to correctly identify the taken-down files as JDownloader and then misrepresent itself as acting under authority from Appwerk GmbH, JDownloader’s developer.”

Interestingly, the above reasoning confirms that Warner deliberately used Hotfile’s DMCA tools to take down files that they are not the owner of, an issue that will certainly be brought up during trial.

Warner believes that the above is reason enough to exclude the “perjury” issue from trial. Hotfile can’t just make up crimes by extending the scope of the DMCA, and should not be allowed to present an argument which could mislead the jury, they claim.

In a separate motion Warner wants the court to exclude evidence Hotfile has gathered on an audit of the movie studio’s anti-piracy system, and changes that were made as a result. Warner argues that the audit is irrelevant, since it was performed after the false takedown notices were sent.

If Hotfile would use the audit to argue that the movie studio was aware of the errors in their system, this could potentially confuse the jury.

“There is a substantial risk that the jury will see evidence of Warner’s efforts to investigate the claims in Hotfile’s lawsuit and correct any sources of errors as evidence that Warner ‘knew’ about potential inaccuracies in its system at the relevant times, and improperly attribute such knowledge to Warner months earlier.”

“Because Hotfile has selectively cherry-picked the instances in which Warner located and corrected errors as part of its August 2011 audit, there is further risk that the jury will misread the evidence as ‘proving’ that Warner’s system was error-prone and seek to punish Warner for it,” Warner adds.

The above suggests that Warner is not totally confident that the trial will end well for them. It is now up to the judge to decide whether or not the issues above can be raised during trial.

The judge is also still considering a motion from Hotfile to exclude terms such as “piracy,” “theft” and “stealing” from their trial against the MPAA.